Madras High Court
R. Manickavel vs The Secretary on 10 April, 2023
WP No. 34380 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.04.2023
CORAM :
THE HONOURABLE MR. JUSTICE R. MAHADEVAN
and
THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ
Writ Petition No. 34380 of 2022
and
WMP. No. 33839 of 2022
---
1. R. Manickavel
Advocate (Enroll. No. 667/1980)
No.223, YMCA Building
Ground Floor, Parrys
Chennai - 600 001
2. Ralph V. Manohar
Advocate (Enroll. No.304/2007)
Office at
No.4/7, Sri Sudarshanam Building
1st Floor, Errabalu Street
Parrys Corner, Chennai - 600 001
3. A. Ramakrishnan
Advocate (Enrol. No.265/2017)
Office at
No.223, YMCA Building
Ground Floor, Parrys
Chennai - 600 001 .. Petitioners
Versus
1. The Secretary
Bar Council of Tamil Nadu & Puducherry
Bar Council Building
High Court Campus
Chennai - 600 104
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1/18
WP No. 34380 of 2022
2. A.G. Sivaraman .. Respondents
Writ Petition filed under Article 226 of the Constitution of India praying
to issue a Writ of Certiorari calling for the records relating to the proceedings
initiated by the first respondent in pursuant to the show cause notice dated
06.05.2022 in Complaint No. 60 of 2022 (C.O.N.F.L. No.1303 of 2022)
against the petitioner Advocates by quashing the proceedings as the complaint
does not prima facie disclose any professional misconduct against the
petitioners' advocate.
For Petitioners : Mr. S. Poovendhan
For Respondents : Mr. C.K. Chandrasekkar for R1
Mr. A. Kalai Selvan for R2
ORDER
(Order of the Court was made by R. MAHADEVAN, J.)
Seeking to quash the show cause notice dated 06.05.2022 issued by the
first respondent, upon receipt of the complaint No.60/2022 dated 09.02.2022
given by the second respondent against the petitioners, this writ petition is
filed.
2.1. The facts, as set out in the affidavit filed in support of the writ
petition are succintly narrated hereunder for the purpose of disposal of this
writ petition.
2.2. The petitioners are practicising as advocates in the Courts and
Tribunals in the State of Tamil Nadu. While the first petitioner is the Senior
Advocate, the petitioners 2 and 3 are his juniors.
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WP No. 34380 of 2022
2.3. According to the petitioners, the second respondent / complainant
is known to the first petitioner. His father by name A.Govindarajalu is the
founder of an educational trust viz., M/s.Govindarajalu Educational and
Charitable Trust, which owns several schools. The first petitioner, as an
advocate, was attending to all the legal matters entrusted to him by the said
Govindarajalu and he was instrumental in preparation of Trust Deed as well as
re-constituted Trust Deed as required by his client Late.Govindarajalu. The
first petitioner further stated that the said Govindarajalu used to discuss
everything with him including his intention not to give his properties and the
schools to his children. In this context, the second respondent had developed a
grudge against the first petitioner under the impression that it was he, who had
misguided his father Late. Govindarajalu not to give any share in the property
to his children. On the other hand, it was the first petitioner, who convinced
his client Late. Govindarajalu to believe his children and to part with his
property in their favour. But the fact remains that due to pressure exerted by
his children, the said Govindarajalu requested the first petitioner to prepare
three separate Settlement Deeds and settled all his properties in favour of his
children, including the second respondent/complainant.
2.4. It is further stated by the petitioners that after the death of
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Govindarajalu, the first petitioner has attended to the litigations for and on
behalf of the second respondent herein. In the affidavit filed in support of the
writ petition, the first petitioner had narrated the various litigation he had
attended for and on behalf of the second respondent and submitted that the
second respondent had reposed absolute faith and confidence in the first
petitioner and approached him for all his needs.
2.5. While so, one of the clients of the first petitioner by name Anjana
Rani was the owner of the property bearing Door No.35, Venkataraman Street,
Perambur, Chennai - 600 011. It is stated that the said Anjana Rani had a
dispute concerning the said property with her brother and it was the first
petitioner who defended the case of his client Anjana Rani. Ultimately, the suit
in C.S. No. 621 of 2006 for partition, was decreed in favour of Anjana Rani
and she became the owner of half of the property aforesaid. However, appeals
were filed in O.S.A. Nos. 44 and 45 of 2016 by the brother of Anjana Rani.
As the litigation prolonged, the said Anjana Rani, due to her old age, wanted
to dispose of half of the property over which she had obtained decree,
notwithstanding the pendency of the appeals filed by her brother. In this
context, the said Anjana Rani reposed absolute faith and confidence on the
first petitioner as her lawyer. The first petitioner in turn entrusted the job to a
builder by name Rajesh Kumar, who was known to him as well as his client
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Anjana Rani. A power of attorney deed was therefore executed by Anjana Rani
and her children in favour of Rajesh Kumar for alienating the said property.
2.6. It is also stated by the petitioners that during a casual discussion
of the above transaction with the second respondent/complainant, he evinced
interest to purchase the property from Anjana Rani and others. Accordingly,
the first petitioner facilitated the transaction which resulted in the power of
attorney agent Rajesh Kumar entering into an agreement of sale with the
second respondent/complainant, as per which the second
respondent/complainant paid a sum of Rs.1,25,00,000/-. Thus, the first
petitioner was only a facilitator and the transaction was between the builder
cum power agent Rajesh Kumar, the principals Anjana Devi and her children
and the second respondent, over which the petitioners have nothing to do. In
the mean while, the Original Side Appeals were disposed of by modifying the
decree passed in the suit and allotting only 1/3rd share in favour of Anjana
Rani. By virtue of the judgment passed in the appeals, Anjana Rani and her
children became entitled to only 1/3rd share and not half share, as ordered in
the suit. At this stage, the complainant insisted Anjana Rani to execute the sale
deed in respect of half of the share, to which she is not entitled. The
complainant/second respondent therefore wanted the money back and
cancelled the agrement. The power agent cum builder Rajesh Kumar also paid
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a sum of Rs.40,00,000/- by way of cheques and the balance amount is payable
by the builder to the complainant.
2.7. It is the stand of the petitioners that the dispute is purely between
the complainant/second respondent herein and the land owner of the property,
over which the first petitioner has no role to play. The first petitioner, as a
counsel for the land owner Anjana Devi, only facilitated the transaction and he
has not received any money. However, the second respondent has given the
instant complaint dated 09.02.2022 as if the first petitioner had received the
entire amount towards purchase of the property without introducing him to the
owner of the land. The fact remains that the second respondent/complainant
had entered into an agreement of sale only with Rajesh Kumar, Power of
Attorney agent of the land owner Anjana Rani and her children. When the
contract could not be proceeded with due to the judgment and decree passed in
O.S.A. Nos. 44 and 45 of 2016, the second respondent/complainant entered
into an agreement for Rs.1,68,00,000/- with Rajesh Kumar, builder and
received the payment of Rs.40,00,000/-. The Memorandum of Receipt dated
28.04.2021 executed by the complainant/second respondent would make it
clear that the entire allegations made in the complaint as if the first petitioner
had received the entire amount, are false. If the first petitioner had received the
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amount from the complainant/second respondent, there is no necessity for the
power of attorney agent Rajesh Kumar to execute the Memorandum of receipt
dated 28.04.2021 and repay the amount of Rs.40 lakhs to the
complainant/second respondent herein.
2.8. By referring to the Memorandum of receipt dated 28.04.2021
executed by the second respondent/complainant with the power agent Rajesh
Kumar, the petitioners would state that the complaint given by the second
respondent/complainant is nothing but false. There is no professional
misconduct on the part of the petitioners especially when they have nothing to
do with the alleged transaction that had executed between the second
respondent/complainant and land owner as well as her power agent. There is
no prima facie case made out in the complaint warranting initiation of
disciplinary proceedings against the petitioners. The petitioners therefore
would state that an enquiry on the basis of the complaint dated 09.02.2022 of
the second respondent against them, is not warranted.
3. The learned counsel appearing for the petitioners would contend
that the complaint given against the petitioners, who have nothing to do with
the transaction that had between the second respondent/complainant and the
land owner, is an abuse of process of law. According to the learned counsel,
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the complainant/second respondent had engineered a short cut and novel idea
to recover the amount payable by the builder Rajesh Kumar under the
Memorandum of Agreement dated 28.04.2021 by filing the instant complaint
against the petitioners herein. The second respondent/complainant knew very
well that Rajesh Kumar, the builder with whom he had entered into an
agreement, was once a Junior of the first petitioner herein in his office.
Therefore, the second respondent had given the instant complaint, to indirectly
threaten and intimidate the petitioners to exert pressure on the builder to pay
the amount to him. Thus, it is contended that the definition 'misconduct' under
Section 35 (1) of the Advocates Act, 1961 (in short, “the Act”) is not attracted
to the complaint given by the complainant/second respondent. The learned
counsel further contended that the complainant//second respondent is using the
present complaint and the process of disciplinary proceedings initiated by the
first respondent to settle personal score, which should not be permitted. In any
event, the complaint given by the second respondent against the petitioners, a
group of advocates, is not maintainable when no professional misconduct
could be attributed against them. However, the first respondent, without
considering the nature of complaint given against the petitioners, has hastily
issued the notice dated 06.05.2022 in an arbitrary manner and it calls for
interference by this Court. The learned counsel for the petitioners therefore
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prayed for allowing this writ petition by setting aside the show cause notice
dated 06.05.2022 issued by the first respondent.
4.1. The learned Standing counsel appearing for the first respondent
submitted that on receipt of a complaint from the second respondent on
09.02.2022, enclosing 10 documents in support thereof, the first respondent
issued the notice dated 06.05.2022 and sought the response of the petitioners.
The first petitioner submitted his comments on 01.06.2022. The second and
third petitioners also submitted their comments on 02.06.2022 and 01.06.2022
respectively. The complaint received from the second respondent as well as
the comments of the petitioners were placed in the General council meetings.
At this stage, the complainant-second respondent has also furnished a copy of
the first information report registered as Crime No. 132 of 2022 dated
02.07.2022 on the file of CCB 1, registered against the petitioners for the
offences punishable under Sections 406, 420 read with Sections 34 and
120 (B) of IPC in relation to the transaction, which is the subject matter of the
complaint. The first information report was also placed in the subsequent
General Council meetings held on 30.09.2022 and 01.12.2022. The complaint
received from the second respondent was discussed and deliberated, however,
the decision was deferred as a few of the members sought time to go through
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the complaint and the documents submitted therewith. In the meantime, two
other complaints received against the petitioners under Complaint Nos.
29/2021 and 49/2021 were also deliberated and they were dropped on
18.12.2021 by the General Council.
4.2. It is further stated by the first respondent that on 23.12.2022, the
General Council meeting of the Bar Council was scheduled to be taken place.
However, on 20.12.2022, the petitioners have filed the present writ petition
alleging that the first respondent ought not to have entertained the complaint
from the complainant inasmuch as there is no prima facie case made out
against the petitioners. By virtue of the present writ petition, the petitioners
are attempting to restrain the statutory body / Bar Council from exercising
their powers to consider a complaint given by the complainant, as an aggrieved
party, on merits. The first respondent is seized of the complaint given by the
second respondent, but a decision is yet to be taken. Hence, the apprehension
as well as the allegations made in the writ petition are baseless and the rights
of the petitioners are in no way taken away. While so, the present writ petition
as against the show cause notice dated 06.05.2022 in Complaint No. 60 of
2022 is not maintainable, as it is premature. The learned counsel for the first
respondent also submitted that the decision taken by the first respondent in the
meeting held on 23.12.2022 has been furnished to this Court, in a sealed cover.
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Stating so, the learned counsel prayed for a direction to the first respondent to
pass further orders in accordance with law, with regard to the complaint
lodged by the second respondent.
5.1. The learned counsel for the second respondent / complainant
submitted that the second respondent after coming to know about the
availability of the property owned by one Anjana Devi for sale, evinced
interest to purchase it. When it was disclosed to the first petitioner, he fixed
the total sale consideration of the property at Rs.3,25,00,000/- during January
2016 and the second respondent paid Rs.10,00,000/- as advance. On receipt of
the amount, a sale agreement was entered into between the first petitioner and
the second respondent during January 2016, however, the date was written in
the stamp paper as 16.07.2013. Subsequently, at the request of the first
petitioner, the second respondent paid another sum of Rs.40,00,000/-. When
the second respondent insisted the first petitioner to introduce him to the
owner of the property namely Anjana Rani, he assured to facilitate a meeting.
However, during July 2016, the first petitioner only produced an unregistered
general power of attorney deed dated 02.07.2016 executed in favour of Rajesh
Kumar, who is the staff, working in the office of the first petitioner. The power
of attorney deed was drafted and signed by the first petitioner with a notary
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seal. When the second respondent reiterated his request to meet the owner of
the property, it was informed that the land owner is aged 80 years and her legal
heirs have duly executed a power of attorney deed dated 10.07.2016 in favour
of Rajesh Kumar. The first petitioner also assured to transfer the sale
agreement between him and the second respondent and that, a fresh sale
agreement will be executed between the power agent Rajesh Kumar and the
second respondent. At this stage, the second respondent has paid another sum
of Rs.40,00,000/- to the first petitioner and reposed utmost faith and
confidence in him. Since the first petitioner did not introduce the land owner
inspite of repeated demands, the second respondent started suspecting the
activities of the first petitioner. At one stage, the first petitioner clearly stated
that the second respondent cannot meet the land owner and if he believes his
word, he can proceed with the transaction otherwise, he can get back the
money paid. In such circumstances, the second respondent did not incline to
proceed further with the transaction and decided to get back the sum of
Rs.1,68,00,000/- paid to the first petitioner. On such demand for repayment,
the first petitioner made the second respondent to meet him on several
occasions and ultimately paid a sum of Rs.40,00,000/- and assured to repay the
balance amount.
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WP No. 34380 of 2022
5.2. The learned counsel for the second respondent further submitted
that the complaint given by the second respondent against the petitioners is not
a lone or isolated complaint. There are several complaints given against the
petitioners before the Bar Council of Tamil Nadu and most of the complaints
were closed. In any event, the petitioners, having submitted their response to
the notice dated 06.05.2022 issued by the first respondent, are precluded from
approaching this Court with this writ petition. The gay-abandon with which
the present writ petition has been filed by the petitioners, would only expose
their intention to stall all legal proceedings that may be initiated by the first
respondent against them. The first respondent, being a statutory body, has to
be permitted to conduct the proceedings against the petitioners based on the
complaint given by the second respondent. It is also submitted that the
complaint given by the second respondent clearly makes out a case of
professional misconduct and it has to be enquired by the first respondent as
contemplated under the Act. Therefore, the learned counsel prayed for
dismissal of the writ petition.
6. We have heard the learned counsel for the petitioners, the learned
Standing Counsel for the first respondent and the learned counsel for the
second respondent and also perused the materials available on record.
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7. Admittedly, a complaint dated 09.02.2022 was sent by the second
respondent to the first respondent alleging professional misconduct
attributable on the part of the petitioners. On receipt of the complaint, the first
respondent sought the response of the petitioners by issuing notice dated
06.05.2022, which is impugned in this writ petition. It is also an admitted fact
that all the petitioners have submitted their response, repudiating the
averments made in the complaint dated 09.02.2022 given by the second
respondent against them.
8. It is seen from the second respondent's complaint that there is
advocate and client relationship between the petitioners and the second
respondent/complaintant; and that, several acts of misconduct on the part of
the petitioners have been alleged and the same have also been substantiated by
documentary evidence. However, this court is of the opinion that those factual
disputes raised by the second respondent warrant detailed examination by the
first respondent by conducting an enquiry and the same cannot be gone into, in
this writ petition under Article 226 of the Constitution of India.
9. It is also to be noted that the first respondent is governed by Tamil
Nadu Bar Council Act and Rules made thereunder. Whenever a complaint is
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received against a legal practitioner, interest of justice demands that the person
against whom a complaint has been received, is put on notice in compliance
with principles of natural justice. Accordingly, in the present case, on receipt
of the complaint dated 09.02.2022 from the complainant, the first respondent
merely issued a notice and sought the response of the petitioners. The
petitioners have also subjected themselves to the jurisdiction of the first
respondent by submitting their response. In such circumstances, they ought to
have waited for the outcome of the enquiry conducted by the first respondent,
which is a statutory body and is already seized of the matter. Therefore, the
first respondent has to be permitted to proceed further with the enquiry against
the petitioners.
10. Though a specific plea was raised by the petitioners that the
complaint dated 09.02.2022 given by the second respondent is false and the
first respondent ought not to have even issued the notice, which is impugned
in this writ petition, the same cannot be countenanced by this court, as it is
well settled principles of law that a writ petition cannot be maintained against
a notice issued by the statutory authority and that, the statutory authority may
be permitted to conduct and complete the proceedings. If it is found that the
charges raised in the complaint do not amount to professional misconduct,
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then, the authority may even drop the proceedings. Therefore, this court is not
inclined to entertain the instant writ petition at this stage.
11. Concededly, upon considering the complaint dated 09.02.2022
given by the second respondent as well as the response submitted by the
petitioners, the first respondent has already examined the same and an order
was made ready to be pronounced. At this stage, the petitioners have rushed to
this Court with this writ petition, in which, this court directed the first
respondent to submit a report. Accordingly, the report was submitted in a
sealed cover, which has been perused by this court. We are not inclined to
express any opinion as to the correctness or otherwise of the same, except
directing the first respondent to serve a copy of the said report to the
petitioners and proceed further in accordance with law. We also direct that the
report submitted by the first respondent in a sealed cover shall be returned to
them, under due acknowledgment.
12. Accordingly, the writ petition stands disposed of. No costs.
Consequently, connected Miscellaneous Petition is closed.
[R.M.D., J] [M.S.Q., J]
10.04.2023
Speaking Order / Non-speaking Order
Index
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: Yes / No
WP No. 34380 of 2022
Internet : Yes / No
rsh
To
The Secretary
Bar Council of Tamil Nadu & Puducherry
Bar Council Building
High Court Campus
Chennai - 600 104
https://www.mhc.tn.gov.in/judis
WP No. 34380 of 2022
R. MAHADEVAN, J
and
MOHAMMED SHAFFIQ, J
rsh
WP No. 34380 of 2022
10.04.2023
https://www.mhc.tn.gov.in/judis
